1. This is an application for revision of an order convicting the applicants under Sections 3 and 4 of the Public Gambling Act (Act III of 1867). The main ground on which the application is pressed is that the Magistrate who issued the search warrant should not have tried the case. The trying Magistrate issued the search warrant tinder Section 5 not only on information but as the proceedings show also after an enquiry. There is a direct authority reported in Chin Pin v. Emperor AIR 1920 LB 85. The decision is no doubt under the Burma Gambling Act, but the reasoning would apply equally to the facts of the present case. I quote the relevant portion of the judgment
The main ground is that the Magistrate issued the warrant under Section 6 of the Gambling Act after expressing his belief on the information received that the house in question was a common gambling house, and that he is, therefore, disqualified from trying the case. The belief expressed was that the information was credible to the extent that a warrant may issue on the strength of it. That information alone is not sufficient to warrant a conviction, but it does help to raise the presumption under Section 7 when the provisions of Section 6 of the Act have been complied with. What the trying Magistrate has to do when the police send up the case for trial is to see whether the provisions of Section 6 have been complied with. One of the points he has to satisfy himself of under that section is as to the sufficiency of the information. The Legislature has not laid down that the Magistrate who issued the warrant may try the case. The issue of a warrant is extra judicial. The trying Magistrate takes cognizance of the case under a police report. As he has to consider the question of the sufficiency of the information he should be a different person from the one who issued the warrant. To allow the Magistrate issuing the warrant to try the case is hardly fair to the accused who asks him to see whether the information was sufficient or not. The Magistrate has already formed his opinion on the point. There is another way of looking at the matter. The Magistrate who issued the warrant was the one who set the law in motion, and was, therefore, somewhat in the nature of a prosecutor. It must here be borne in mind that the Magistrate was doing what a police officer empowered under Section 6 is able to do. In either view of the matter, the spirit of Section 556 of the Criminal Procedure Code is violated and its intention virtually defeated.
2. For the above reasons I report the case to the Hon'ble High Court with a recommendation that a re trial be ordered by some other competent Magistrate. The Magistrate who passed the order of conviction is no longer in this district and so his explanation cannot be submitted along with the record.
3. With all respect to the learned Judges of the Rangoon High Court who are said to have decided other wise, I cannot agree that the mere fact that the Magistrate had issued a search warrant prior to the institution of the case disqualifies him from trying the case within the meaning of Section 556 of the Criminal Procedure Code. Nor is the mere fact that the accused may possibly object that the warrant was issued on insufficient materials sufficient to amount to a disqualification. An analogy may be drawn from proceedings under 3. 110 of the Criminal Procedure Code. In such proceedings the Magistrate must before he commences the judicial inquiry, write an order setting forth the substance of the information received and calling on the accused to show cause why they should not be required to give security. Objection may be and not infrequently is, afterwards raised that this preliminary order was not passed in accordance with law. The possibility of such objections being raised has never been held to necessitate the transfer of the proceedings to another Magistrate. Let the record be returned.